Recently, a piece of legislation which would make it illegal for federal prosecutors to order companies to turn-over privileged documents as part of a cooperation agreement, passed a U.S. House of Representatives vote; and now is backed by a dozen U.S. senators, 32 former federal prosecutors, and coalitions such as the ACLU. The practice of federal prosecutors obtaining privileged information through cooperation agreements has led to the obtaining of information which would otherwise have never been uncovered and in-turn, larger investigations and convictions. The Bill, which would make this practice illegal, has not been described as “pro-company” or “pro-business”, but rather based on the fundamental principles of legal counseling. Attorney-client privilege has always been a staple in our legal system, and the practice of forcing a company to disclose such privileged information contradicts this basic standard.

The Bill comes after a federal judge threw-out several individual indictments against employees of KPMG, after learning that federal prosecutors banned KPMG from paying their employee’s legal fees. The judge ruled such imposition on the individuals as onerous. Stemming from this decision, and similar decisions following the ruling, the Attorney-Client Privilege Protection Act was written; and if passed, would limit the right of prosecutor’s to demand privileged information from companies attempting to seek a plea agreement or deferred prosecution agreement. The Bill would not impose penalties on prosecutors who violate the law, however, it would make information obtained illegally inadmissible. The Bill is expected to pass either before the Senate’s summer recess or soon after the inauguration of the next President.

Attorney-client privilege is a legal concept that protects communications between a client and his or her attorney and keeps those communications confidential. For a confidential consultation regarding current or potential legal issues, contact the Law Offices of Marc Neff at your earliest convenience.